Impact of future appointments to the U.S. Supreme Court

Responses to the nomination
of Judge Samuel Alito, Jr.

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Background:

Judge Alito was born in Trenton, NJ, in 1950. He graduated from Princeton in
1972 and obtained a Doctor of Law degree at Yale in 1975. Between 1981 and 1985,
he was an Assistant to the federal solicitor general. During 1985 to 1987, he
was the deputy assistant to the U.S. attorney general. He has been a judge on
the 3rd U.S. Circuit Court of Appeals in Philadelphia, PA since 1990. This is a
court that is one level below that of the U.S. Supreme Court. It is also among
the most liberal of the Circuit Courts of Appeals.

According to the Rominger Legal news service, Alito has been "dubbed 'Scalito'
or 'Scalia-lite'."1 This
is in reference to Justice Scalia being generally regarded as the most
conservative strict constructionist Justice of the Supreme Court. Reporters
Elisabeth Bumiller and Carl Hulse of the New York Times describes his record as
being conservative on abortion access, and tough on organized crime. They wrote:

"Judge Alito, the 55-year-old son of an Italian immigrant and a graduate
of Princeton University and Yale Law School, has a rich background in
constitutional law and government. His resume is not unlike that of Chief
Justice John G. Roberts Jr., a Harvard Law graduate and appellate judge who
sailed through his Senate confirmation hearings.....Judge Alito, a
methodical and cautious jurist who is said by Republicans to have impressed
Mr. Bush with his modesty in an interview last summer, responded that he had
long held the Supreme Court 'in reverence'." 2

President Bush nominated Judge Alito on 2005-OCT-31. He said:

"Judge Alito is one of the most accomplished and respected judges in
America, and his long career in public service has given him an
extraordinary breadth of experience....Judge Alito has more prior judicial
experience than any Supreme Court nominee in more than 70 years." 2

Judge Alito scores high on such matters as
experience, intelligence, integrity, thoughtfulness, clear thinking, etc.
However there is an over-riding factor: his judicial philosophy. Many recent
moral, ethical, and privacy rulings of the U.S. Supreme Court have been decided
by a 5 to 4 vote. Often, Justice Sandra Day O'Connor has cast the deciding vote.
If Judge Alito's nomination is confirmed, Justice O'Connor will retire and her swing vote will be
replaced by a Judge Alito's solidly conservative, strict constructionist vote.
The entire nature of the Supreme Court would undergo a massive change. Over the
many decades that Alito would probably serve on the Court, his vote would make
profound changes to the culture of the United States as previous laws which were
found to be unconstitutional will be affirmed, and vice-versa. The changes might
well occur in the areas of personal privacy, the power of the executive branch
of government, abortion
access, equal rights for homosexuals,
same-sex marriage, separation
of church and state, affirmative action, etc.

Judge Alito's views:

Prior to Senate confirmation meetings, it is difficult to determine Jude
Alito's views on controversial matters. That is because the vast majority of his hundreds
of rulings as a judge are required to follow prior decisions by the U.S.
Supreme Court.

Consider the following statement by, Mischael Peroutka of
TheAmericanView.com on 2006-JAN-04:

"Regardless of what you have read, seen or heard, the record of President
Bush's Supreme Court nominee Judge Samuel Alito shows that he is not
pro-life. He has voted against banning partial-birth abortion (infanticide).
He has cited approvingly Roe v. Wade -- which he did not have to do and
which is not law. He has, in one case, said an eight-and-a-half-month-old
unborn baby that died was not Constitutionally a person because Roe v. Wade
says this." 3

Justices of the U.S. Supreme Court are free to express their personal
opinions on each case brought before them. However, judges at lower level courts
must follow prior decisions of the Supreme Court. So, when deciding a case
involving the constitutionality of a law like the one that banned D&X (a.k.a. partial birth)
abortions, he had to follow the prior decision of the Supreme Court which stated
that a health exemption clause must be included in the law in order to make it
constitutional. When deciding a case involving a woman's access to an abortion,
he must follow Roe v. Wade and similar Supreme Court ruling which grants women
restricted access to abortions.

Justice Alito is also alleged to have given his legal opinion that the U.S.
Constitution does not guarantee a woman's right to abortion access. He also
expressed his pride in his work to overthrow the Roe v. Wade decision of the
U.S. Supreme Court as an employee of the federal government. But he wrote
these comments in a job application when he successfully attempted to land a job decades
ago during the Reagan years in the Justice Department. People sometimes write
material in job applications which is not particularly accurate.

People for the American Way stated (PFAW):

"While in the Solicitor General's office, Alito argued that Cabinet
officials charged with authorizing illegal wiretaps of Americans in this
country are entitled to absolute immunity from legal liability, a deeply
troubling position at a time when the President vows to continue illegal
domestic spying." 4

However, that work was done on behalf of his employer, and may not have
represented his own beliefs. Lawyers are noted for their ability to argue and
work on either side of a case, and to suppress their own opinions in favor of
the wishes of whomever hired them.

Some recent developments are more troubling. PFAW continues:

"As a judge, Alito cast the deciding vote to uphold the FBI's video
surveillance of a suspect's hotel room without a warrant and tried to
approve the strip search of a mother and her ten-year-old daughter even
though the warrant authorizing the search did not name them."

"Alito broke his pledge to recuse himself from cases involving Vanguard
funds, with which he had significant investments. Alito and Bush
administration officials have offered at least three different excuses for
his failure to keep his promise, including blaming a 'computer glitch'."

"In his Senate questionnaire, Alito implausibly claimed not to remember
having been a member of a group known as Concerned Alumni of Princeton,
which advocated restrictions on the admission of racial minorities and women
at Princeton while supporting 'affirmative action' for athletes, legacies,
and ultraconservative professors. But he had previously bragged in writing
about his membership in the group, which was made infamous by press coverage
of its hostility to diversity." 4

The British Broadcasting Corporation commented that in 1991, one year after
being appointed to the Federal Appeals Court:

"....he voted to uphold all restrictions on abortion in Pennsylvania law,
requiring a woman to notify her husband before an abortion. This was struck
down by the Supreme Court in a decision that reaffirmed the landmark Roe v
Wade case."

"Other notable cases involving Mr. Alito include:

Police v City of Newark, 1999; the opinion he drafted ruled that
Muslim police officers in Newark could keep their beards for religious
reasons

Fatin v INS, 1993; he joined the majority in backing the right of an
Iranian woman to seek asylum on grounds of fear of persecution for her
gender and feminist ideas

The Pitt News v Pappert, 2004; he backed the right of student
newspapers to carry alcohol adverts as a matter of free speech.

ACLU v Schundler, 1998; he ruled that a public display of a creche
and menorah did not violate prohibitions on government endorsement of
religion because it also included non-religious symbols including Frosty
the Snowman. 5

Current status of the nomination process:

Democrats on the Judiciary Committee delayed the vote on Judge Alito's
nomination until 2006-JAN-24. His nomination passed by a straight party-line
vote with all Republicans voting in favor and all Democrats voting against. The
matter proceeded to the Senate who confirmed Judge Alito as the 110th Supreme Court
justice by a vote of 58 to 42.

References used:

The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.